Contact Your Customers with Confidence: Recent Developments in TCPA - - PowerPoint PPT Presentation

Contact Your Customers with Confidence: Recent Developments in TCPA Litigation

Sean Wieber Bill O’Neil

Today’s Presenters

Sean Wieber

Partner Chicago swieber@winston.com (312) 558-5769

Bill O’Neil

Partner Chicago woneil@winston.com (312) 558-5308

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The TCPA is a strict liability statute that allows for class actions and

treble uncapped damages…

making it a MAJOR problem

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We don’t spam our customers or use aggressive telemarketing…the TCPA doesn’t impact me

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Well, neither did they

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4 of the nation’s

Largest

NFL & NBA

Franchises

Banks

3 of the

largest

fast food chains Leaders in transportation and tele- communications

Ripped from the Headlines…

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Largest TCPA Settlements through 2016

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Source: U.S. Chamber Institute for Legal Reform, Aug. 2017

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After the FCC’s July 2015 Order, TCPA litigation went up 46%

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14 16 44 354 831 1,136 2,220 3,052 3,687 4,860

1,000 2,000 3,000 4,000 5,000 6,000

2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

Federal TCPA Claims Per Year

“The sprawl of the TCPA litigation illustrates the serious problem when

uncapped statutory damages

and a technologically-outdated

statute work together to

• verincentivize litigation.”
• U.S. Chamber Institute for Legal Reform

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“Plaintiff’s interests, which include purchasing cell phones with the hope

• f receiving calls from creditors for the

sole purpose of collecting statutory

damages, are not among the sorts of

interests the TCPA was specifically designed to protect.’”

• Judge Kim R. Gibson,

Western District of Pennsylvania

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“The common thread here is that in practice the TCPA has strayed far

from its original purpose. And the

FCC has the power to fix that.”

• Ajit Pai,

Current Commissioner of the FCC 2015 Order, Dissent

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Overview

I. Brief Refresher on the Fundamentals II. Developing Litigation Trends and Changes in Law

• III. All Too Realistic Hypotheticals
• IV. How to Better Protect Your Company Today
• V. Questions

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• I. A Brief Refresher on the Fundamentals

The Statute & The Code: 47 U.S.C § 227; 47 CFR 64.1200-1202

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• Statute passed in 1991, with the purpose to

“protect residential telephone subscriber privacy rights by restricting certain commercial solicitation and advertising uses of the telephone and related telecommunications equipment.”

• Those were the good ol’ days…since, the FCC has

interpreted the TCPA into continued relevancy by widening its enforcement well beyond the law’s intended purpose

The TCPA Web of Liability

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TCPA

Landlines

Advertising Requisite Consent Do Not Call List

Cell Phones

Autodialer Consent/ Revocation Advertising

Text Messages

Autodialer Consent/ Revocation Standing

Faxes

Requisite Consent Advertising Proper opt-

• ut notice

Private Actions and Class Actions

• Sections 227(c)(3) and (c)(5) provide individual consumers

with a private right of action without prohibiting class actions

• $500 per violation (i.e., per call, text message, or fax)
• Treble Damages ($1500/violation) if “willful and knowing”

…it’s always willful and knowing.

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Primary Affirmative Defenses

• Evidence of requisite consent
• Challenge the use of an Autodialer aka Automatic

Telephone Dialing System (“ATDS”)

• Valid opt-out disclosures (fax)
• Communication was not an “advertisement” or constitutes

“telemarketing”

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Recent Changes at the FCC

• Following the 2016 election the

FCC changed in leadership and composition

• Ajit Pai – New FCC Chairman

not a fan of the TCPA

• But, nothing…yet

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Bad facts and no absolute defenses…

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• What do you do?
• Is there a “right” time to engage in settlement

negotiations?

Rolling the dice at trial

• The house always wins…
• The Trebled Pain (M.D.N.C. 2017)
• Court trebled jury verdict of $20.5 million in damages to $61.3 million
• Judgment, Settlement Style (7th Cir. 2016)
• The exception—not the rule
• The Huckabee Case, yes that Huckabee

(E.D. Mo. 2017)

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• II. Developing Litigation Trends and

Recent Changes in Law

The Waiting Game: ACA International v. FCC

• 1. What is an ATDS?
• 2. Whether consumer consent attaches to the number
• r the person?
• 3. Revocation by “any reasonable means”

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The Undelivered Promise: Spokeo

• Spokeo v. Robins (U.S. S.C. 2016): Initially thought of as a

cure-all

• Mere statutory harm not necessarily concrete enough for standing
• Impact has been uneven
• Susinno v. Work Out World (3rd Cir. 2017)
• Franklin v. DePaul University (N.D. Ill. 2017)
• Christopher Legg et al. v. PTZ Insurance Agency LTD (N.D. Ill. 2017)

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The TCPA Minefield: Consent and Revocation

• Unilateral Revocation when in Contract
• “Call Me Maybe” Partial Revocation
• The Wild West of Text Messaging

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Good News in Fax-land

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• Bais Yaakov of Spring Valley v. FCC

(D.C. Cir. 2017)

• Enforcement woes
• Hope on the Horizon

Class Certification – often, the saving grace

• Ascertainability:
• No records, no problem??
• Typicality:
• A plaintiff’s individuality is a class killer; so, be you, and just

you…please??

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• III. All Too Realistic Hypotheticals

When a simple reminder isn’t so simple…

• Your company is in the consumer services business. In an

effort to better serve your client, you offer a reminder text prior to their appointment.

• Do you need consent? If so, what kind?
• Now, what if instead of a reminder, in an effort to

incentivize the customer to return, you text a coupon for their next appointment?

• What kind of consent do you need? Methods of revocation?

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When “It Wasn’t Me” Isn’t Enough

• Your company does not do its marketing and soliciting of

new business in-house. Your company expects these third-parties to solicit business in only the most law- abiding manner. Unfortunately, your company is mistaken and there are TCPA violations that run the gamut from unsolicited autodialed calls to cell phones to refusal to honor reasonable revocation.

• Are you liable? What are the determining factors?

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No Grey when Faxing in Black and White…

• Your company sends fax advertisements. (Yes, they still

exist.) You have the requisite consent from some of your clients but accidentally sent unsolicited faxes to prospective clients as well. Further, your opt-out language

• n the bottom of the fax is deficient.
• Is your company liable for the deficient opt-out notice to

solicited recipients? Unsolicited? Why?

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• IV. How to Better Protect Your Company Today

An ounce of prevention is worth a pound of cure

• How do I communicate with my clients?
• What are the major avenues for liability under that method?
• Contact a reputable and knowledgeable firm to conduct

an audit

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TCPA Checklist

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DO

 Obtain express written consent prior to initiating or sending telemarketing calls to consumers  Provide one or more automated

• pt-out mechanisms

 Require and ensure all third- party vendors or marketing partners are TCPA compliant  Know what type of communications you are sending to consumers  Keep all records of consent for at least four years

DON’T

 Don’t assume that past consent received is still valid  Don’t place unnecessary restrictions on the scope of consent  Don’t assume your means of communication is not an ATDS  Don’t assume you can avoid liability through use of a third- party marketer

Aggressive Plaintiff’s Counsel is Still Lurking

• You can be sued for any communications from the

last 4 years

• The rate of suits continues to rise
• Reach out immediately to counsel who can

aggressively get a handle on the litigation, to mitigate— if not eliminate—your liability

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Thank you

Sean Wieber

Partner Chicago swieber@winston.com (312) 558-5769

Bill O’Neil

Partner Chicago woneil@winston.com (312) 558-5308

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• V. Questions?